It was alleged in the indictment that the stolen car belonged to Will Moody, and was taken from his possession without his consent. Upon the trial it developed that on the night of the theft a son of Mr. Moody was driving the car and parked it in front of a store from which place it was stolen. It is urged now on motion for rehearing that a variance appears between the averments and proof in regard to ownership and possession. No such contention was made upon the trial, and appellant made no claim that the car was taken with the son's consent. The evidence shows that the son lived with his father, and the record is silent as to the son's age. So far as the record shows he may have been a minor. Even if the property be in the exclusive control and management of a minor it is our understanding of the law that ownership and possession may be alleged in either him or the parent. 41 Tex. Jur., page 135, Sec. 84; Jackson v. State, 47 Tex.Crim. Rep.; Bazan v. State, 24 S.W. 100; Wright v. State, 35 Tex.Crim. Rep.,34 S.W. 273. However, there is nothing in the present record to indicate that the son was more than the mere custodian of the property. See 41 Tex. Jur., page 132, Sec. 82.
We have again examined the bills of exception, all of which complain of argument of the district attorney. None of them appeals to us as presenting error calling for a reversal. The statement in argument that the witness Williford had told him — the district attorney — that he knew appellant, might under some circumstances present a serious question, but in view of the record and the remarks of appellant's counsel we think no such question is presented here. In the examination of such witness in chief the State only proved by him that he saw appellant get in the Moody car and drive it away. On cross-examination appellant's counsel himself elicited from the witness that he could not possibly be mistaken in appellant's identity; that while witness had never seen appellant before the time of the theft, he picked him out from some fifteen other men in the jail, as the one he had seen take the car. Witness answered on cross-examination *Page 56 that he had not talked to anyone about the case. In his argument counsel for appellant said:
" 'I know that the witness had talked to the State's attorneys in this case, and the State's attorneys knew exactly what he was going to say when they put him on the stand. I have never in my life put a witness on the stand without first talking to him and knowing what he was going to swear.' Counsel for the defendant was not sworn as a witness in the case. In reply to this argument, the district attorney used the following language: 'If Mr. Barnes can testify in this case, I suppose I can. I saw Mr. Williford out in the hall and asked him if he knew the defendant, Dallas Randall. He replied that he did. Further than that, I did not know what the witness Williford was going to testify and swear when he took the stand.' "
We take the foregoing quotation from the court's explanation to bill number one. It will be noted that no proof had been offered by appellant seeking to impeach Williford by showing that he had made statements indicating that he did not identify or know appellant; if such had been the situation the district attorney's statement would undoubtedly have presented a most serious question. But arising as it did, and in view of the entire record, we can not reach the conclusion that a reversal is demanded.
The motion for rehearing is overruled.
ON APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.